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Cultivating the Creative Commons

By Ronald Sackville - posted Wednesday, 15 June 2005


A conference on “Cultivating the Creative Commons” particularly one sponsored by the modestly, if not tautologically, named Creative Industries Faculty is not a place where you expect to find old-fashioned people. But for those of us that are old-fashioned, even Luddite, there is a special benefit in the opportunity to engage in face to face discussions on the proper role of and boundaries to intellectual property rights.

For better or for worse, I bring in to this area of discourse the perspective of a Judge who is occasionally and more or less randomly exposed the complexities and challenges of intellectual property law. Even from this limited perspective, it is impossible to avoid being struck by how rapidly (to use the words of Peter Drahos and John Braithwaite in their book Information Feudalism) there has been a transfer of knowledge assets from the intellectual commons into private interests.

This point was driven home most recently in Australia by the debate concerning the ratification of the Australia-United States Free Trade Agreement. For a brief time, patent and copyright law was at the forefront of public debate in this country. Intellectual property lawyers, or at least a smattering of them, enjoyed a fleeting moment of public exposure, if not fame. The word “evergreening” temporarily entered the Australian vernacular as commentators debated the extent to which holders of drug patents use dubious claims to extend their monopoly at the expense of generic drug manufactures and ultimately the public.

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One of the most fascinating sections of Professor Lessig’s recent book, catchily entitled Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, is his account in Chapter 13 of Eldred v Ashcroft, in which he acted as counsel for Mr Eldred. Despite Professor Lessig’s best efforts, for which he modestly offers a mea culpa, the Supreme Court of the US upheld the validity of the so-called Sonny Bono Copyright Extension Act 1998, which retrospectively extended the term of copyright by 20 years, to a period of the life of the author plus 70 years. It is no coincidence that the FTA obliges Australia to enact similar legislation. The Commonwealth Parliament has now done so in the implementing legislation, the US Free Trade Agreement Implementation Act 2004 (Cth).

Despite the Supreme Court’s ruling and the willingness of Australian negotiators to accept the position of the US, it is extremely difficult to understand the policy justification for a further extension of the term of copyright, let alone the application of the extension to subsisting copyright. Interestingly enough, one of the dissenters in Eldred v Ashcroft was Justice Breyer, who 30 years earlier as a young law professor had written a famous article in the Harvard Law Review arguing that the supposed non-economic benefits of copyright did not justify the grant of monopoly rights to authors and that the economic benefits of copyright had been greatly overstated. In his opinion in Eldred v Ashcroft, Justice Breyer ridiculed the suggestion that a 20-year extension of copyright will act as an economic spur to authors to create new works:

What monetarily motivated Melville (he asked alliteratively) will not realise that he could do better for his grandchildren by putting a few dollars in an interest-bearing account?

In his dissenting opinion in Eldred v Ashcroft, Justice Stevens, in words that echo the famous speech given by Lord Macaulay in 1841, pointed out that:

Ex post facto extensions of copyright result in a gratuitous transfer of wealth from the public to authors, publishers and their successors and interests.

The real sting in the tail of this comment is that for the most part, beneficiaries of the extension will not be authors or even the original publishers, but commercial entities which acquired the rights long before the extension.

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Another significant feature of the FTA is its insistence that the parties provide for criminal penalties to be applied where a person is found to “have engaged wilfully and for the purpose of commercial advantage” in certain conduct infringing intellectual property rights. These provisions reflect an established policy of criminalising deliberate commercial conduct which infringes intellectual property rights, especially copyright.

There is nothing particularly remarkable in this policy, until one looks at how it has been implemented in Australia. The Copyright Act provides that a person who distributes an article for commercial purposes, which that person knows is an infringing copy, is guilty of an offence punishable on summary conviction by a term of imprisonment of up to five years.

This means, for example, that a Local Court in New South Wales, acting under federal law, can impose a sentence of imprisonment of up to five years for a deliberate infringement of copyright, when the same Court, under State law, can impose a sentence of no more than two years imprisonment in respect of any summary offence. The most plausible explanation for these extremely unusual arrangements, about which I have had occasion to comment judicially, is that they are designed to accommodate the contention of copyright owners that not only severe criminal penalties, but special procedures are needed, to curtail the activities of copyright pirates.

There are many commentators who have appreciated - in the words of James Boyle - that we are in the middle of the “second enclosure movement”, which he sees as exemplified by the recognition of patent rights in human genes. Peter Drahos and John Braithwaite draw a parallel between medieval feudalism and what they describe as “information feudalism”. Under the earlier variety, a lord of the manor exercised not only private power by virtue of his ownership of land, but public power, though a system of manorial taxes, courts and prisons.

In the modern form of feudalism, the transfer of intellectual commons has been to media conglomerates and integrated life sciences corporations, rather than to individual scientists and authors. The effect of this, they argue, is to raise levels of private monopolistic power to dangerous global heights, at a time when States, which have been weakened by the forces of globalisation, have less capacity to protect their citizens from consequences of the exercise of this power.

Similarly, William Cornish entitled his 2002 Clarendon Law Lectures Intellectual Property: Omnipresent, Distracting, Irrelevant? in order to highlight the major dilemmas which enmesh intellectual property: omnipresent - to capture the case where intellectual property rights appear to be “spreading like a rash”; distracting - to describe rights which achieve few of their intended purposes but which cause persisting itching; irrelevant - to refer to technology which in practice seems to render some forms of intellectual property nugatory.

Why have these developments occurred? From an Australian perspective, three major factors have combined to generate the pressures to which the creative commons movement is a response.

The first, obviously enough, is the power of interest groups whose economic well-being depends upon the privatisation of intellectual property resources. In general, the interest groups favouring the extension of intellectual rights are very well resourced, effectively organised and politically powerful both at a national and an international level. Often they can enlist the support of national governments in multilateral and bilateral negotiations.

The US, in particular, has used trade negotiations to ensure “adequate and effective protection” for the intellectual property of US corporations in other countries. Trade benefits may be (and often are) withdrawn from countries which fail to grant such protection. The US has played a leading role in the negotiation of multilateral arrangements, such as TRIPS, which have done much to advance the interests of the holders of patents, copyright and other forms of intellectual property.

I do not mean to suggest that there are never powerful interest groups opposing the expansion of intellectual property rights. The history of copyright law, for example, is replete with battles between opposing interest groups, such as music publishers and the manufacturers of tape recorders and other electronic equipment. Even so, the struggle is often unequal.

A second force for extending the boundaries of intellectual property are bilateral and multilateral international arrangements. Like the FTA, these agreements often require the parties to create new species of intellectual property or to enforce existing rights more effectively. The shape of much of Australia’s intellectual property law has been determined by international agreement. Since the Commonwealth Parliament, pursuant to the external affairs power, can legislate to implement international agreements, the effect is that there is virtually no limit on Parliament’s power to privatise intellectual resources.

Technological change is a third powerful force, since technological developments can quickly render obsolete or ineffective existing laws and enforcement mechanisms. As copyright holders, for example, realise that they cannot protect their interests by purely technological means there emerges, in the words of Professor Cornish:

A whole set of distinct demands for higher legal fences as part of the digital agenda, which politicians press at the behest of industry lobbyists and their star writers and performers.

When the new technology and international treaty obligations coincide, the pressures for the extension of intellectual property rights become almost irresistible.

The privatisation of intellectual property resources raises issues that transcend the particular concerns of intellectual property lawyers and their clients. They go to the nature of freedom in a society which, in equal measure, creates opportunities for astonishing innovations and severe restrictions on creativity.

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Article edited by Norman Ingram.
If you'd like to be a volunteer editor too, click here.

This is an edited extract of the address given to the Cultivating the Creative Commons conference at the Queensland University of Technology on January 18, 2005. A longer version of this article has been published in Australian Intellectual Property Journal, Volume 16, May 2005.



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About the Author

Justice Ronald Sackville is a Judge of the Federal Court of Australia.

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